BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2385 (Harkey) 5
As Amended May 9, 2012
Hearing date: July 3, 2012
Penal Code
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ELECTRONIC MONITORING:
CONTRACTS AND STANDARDS
HISTORY
Source: Sentinel Offender Services, Inc.
Prior Legislation: AB 109 (Budget Committee) - Ch. 15, Stats.
2011
AB 1369 (Davis) - 2010, Vetoed
SB 959 (Romero) - Ch. 252, Stats. 2007
AB 3686 (Mojonnier) - Ch. 1603, Stats. 1988
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD ANY ELECTRONIC MONITORING PROGRAM BE REQUIRED TO MEET
SPECIFIED STATUTORY STANDARDS FOR ELECTRONIC MONITORING PROGRAMS FOR
LOW-RISK OFFENDERS AND PROBATIONERS PLACED ON HOME DETENTION?
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PURPOSE
The purpose of this bill is to provide that any defendant who
participates in an electronic monitoring program shall be placed
in a program that meets standards specified in statute for
electronic monitoring of low-risk inmates and probationers who
have been placed on home detention.
Existing law provides that the board of supervisors of any
county may authorize the correctional administrator to offer a
program under which minimum security inmates and low-risk
offenders committed to jail or another correctional facility,
granted probation, or participating in a work furlough program
may be placed in a home detention program under the auspices of
the probation officer, as specified. (Pen. Code � 1203.016,
subd.(a).)
Existing law states that it is the intent of the Legislature
that home detention programs established under Penal Code
Section 1203.016 maintain the highest public confidence,
credibility, and public safety. (Pen. Code � 1203.016,
subd.(j).) In the furtherance of these standards, the following
shall apply:
The correctional administrator, with the approval of the
board of supervisors, may contract with public or private
agencies or entities to provide program services. No
agency or entity may operate a home detention program
without a written contract with that county's correctional
administrator, except as concerns electronic monitoring by
the Department of Corrections and Rehabilitation. No
agency or entity entering into a contract may employ a
person in the home detention program.
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Program acceptance shall not circumvent the normal
booking process for sentenced offenders. All home
detention program participants shall be supervised.
All privately operated home detention programs shall be
under the jurisdiction of, and subject to, the terms and
conditions of the contract entered into with the
correctional administrator.
Each contract shall include, but not be limited to, all
of the following provisions:
o An agreement by the private entity to comply
with standards promulgated by state correctional
agencies and bodies, including the Corrections
Standards Authority, and all applicable statutory
provisions and mandates;
o A provision that clearly defines areas of
respective responsibility and liability of the county
and the private agency or entity;
o An agreement by the private entity to
demonstrate financial responsibility, as approved by
the board of supervisors, so as to fully indemnify the
county for reasonably foreseeable public liability,
including legal fees, that may arise from acts or
omissions of the contractor. The contract shall
provide for annual review by the correctional
administrator to ensure compliance with requirements
set by the board of supervisors and for adjustment of
the financial responsibility requirements if warranted
by caseload changes or other factors.
o The entity shall provide evidence of financial
responsibility, such as certificates of insurance or
copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time
requested by the board of supervisors or correctional
administrator; and
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o The correctional administrator may immediately
terminate the contract with a private agency or entity
if the contractor fails to demonstrate evidence of
financial responsibility.
The board of supervisors, the correctional
administrator, and the designee of the correctional
administrator shall comply with specified requirements in
the consideration, making, and execution of contracts.
The failure of the private agency or entity to comply
with statutory provisions and requirements, or with the
standards established by the contract and with the
correctional administrator, may be sufficient cause to
terminate the contract.
Upon the discovery that the private agency or entity is
not in compliance with applicable laws and requirements,
the correctional administrator shall give 60 days' notice
to the director of the agency or entity that the contract
may be canceled if the specified deficiencies are not
corrected.
Shorter notice may be given, or the contract may be
canceled, without notice whenever a serious threat to
public safety is present.
Existing law provides that a county board of supervisors may
authorize the correctional administrator to offer a program
under which sentenced misdemeanants committed to a jail or other
facility, or granted probation, or placed on work furlough, may
be required to participate in an involuntary home detention
program, which shall include electronic monitoring, during their
sentence under the auspices of the probation officer, as
specified. This authority arises upon a determination by the
correctional administrator that jail overcrowding requires the
release of sentenced misdemeanants prior to the end of their
full terms. (Pen. Code � 1203.017.)
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Existing law allows the board of supervisors of any county to
authorize the correctional administrator to offer a program
under which inmates being held in lieu of bail in a county jail
or other county correctional facility may participate in an
electronic monitoring program if the following conditions are
met (Pen. Code � 1203.018):
The inmate has been held in custody for at least 30
calendar days from the date of arraignment pending
disposition of only misdemeanor charges;
The inmate has been held in custody pending disposition
of charges for at least 60 calendar days from the date of
arraignment; and
All participants shall be subject to discretionary
review for eligibility and compliance by the correctional
administrator consistent with this section.
Existing provisions in the statutes authorizing release on
electronic monitoring of sentenced misdemeanants (Pen. Code �
1203.017) and persons held pending trial (Pen. Code � 1203.018)
require the electronic monitoring program systems to meet
standards established in Penal Code Section 1203.016,
subdivision (j). (Pen. Code �� 1203.017, subd. (i), and
1203.018, subd. (n).)
This bill requires that any person placed on electronic
monitoring pursuant to any provision of law be placed on an
electronic monitoring program pursuant to a contract with the
county that complies with specified existing provisions
concerning electronic monitoring of sentenced misdemeanants and
electronic monitoring of defendants pending trial.
This bill states that nothing in this bill is designed to limit
or restrict the use of electronic monitoring.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
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In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
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-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
Currently, offenders (pre-trial and pre-sentencing)
are periodically placed on electronic monitoring
programs provided by vendors that are not approved
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county providers and who do not have a contract with
the county. These providers may or may not have a
substantive monitoring infrastructure in place to back
up the monitoring devices provided. If the
infrastructure is lacking, the purpose of monitoring
is defeated. If electronic monitoring (radio
frequency and GPS) is to be used effectively as a tool
to enhance public safety, it is imperative that the
providers of the monitoring services have substantial
programs in place to back up the hardware that is
attached to the offender. A county vetting process
needs to be in place and used to insure that the
providers can truly deliver a quality monitoring
service. The monitoring hardware is only as good as
the monitoring "program" that backs it up.
2. Electronic Monitoring Programs for Low Level Offenders,
Sentenced Misdemeanants and Pretrial Detainees in Penal Code
Section 1203.016, 1203.017 and 1203.018 - Standards and
Procedures
In 2007, a program of home detention was created by SB 959 under
which a county board of supervisors could authorize the county
correctional administrator to place sentenced misdemeanants in a
program of home detention. The main purpose of the law was to
reduce overcrowding in jails, particularly in Los Angeles
County. The analysis of SB 959 noted that many jail inmates in
Los Angeles were released after only serving a small fraction of
the sentence imposed by the court. In a letter of support of
this bill, the Los Angeles County Board of Supervisors states
that SB 959 has been helpful in alleviating some of the jail
overcrowding in that county.
SB 959 included standards for electronic monitoring persons
placed on work furlough that had been set out in Penal Code
Section 1203.016, which authorized release on electronic
monitoring of low-risk inmates, probationers and persons placed
on work furlough. Those standards were in turn incorporated
into the provisions of Penal Code Section 1203.018, which
provides for a program of electronic monitoring of pretrial
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detainees.
As part of criminal justice realignment<1> the Legislature
enacted Penal Code Section 1203.018, which provides that a
county board of supervisors and the county correctional
administrator (typically the sheriff) may implement a program of
pretrial release on electronic monitoring. Section 1203.018
provides that a felony defendant may not be released on
electronic monitoring without bail until he or she has been held
in custody for 60 days.
3. The Bill can be Interpreted so as to only Allow Electronic
Monitoring Programs Operated by Private Vendors
This bill, in relevant part, provides: "A person who
participates or is placed in a county-administered electronic
monitoring program shall be assigned to an electronic monitoring
program operating pursuant to a contract with the county that
complies with the provisions of subdivision (j) of Section
1203.016."
This provision can be interpreted to mean that any person placed
in an electronic monitoring program must be placed in a program
operating through a contract between a private entity and the
county. Subdivision (j) of Section 1203.016 concerns electronic
monitoring for supervision of low-level offenders and
probationers. Paragraph (1) subdivision (j) states that the
correctional administrator may contract with a private or public
agency for operation of an electronic monitoring program.
Paragraph (3) applies only to private entities and requires
detailed contract provisions and standards for the privately
operated programs. Subdivision (j)(1) does not provide how a
public agency's electronic monitoring program must operate; it
simply requires a contract between the county correctional
administrator and the public agency.
Because provisions in subdivision (j)(3) concerning how an
electronic monitoring program is to operate appear to only apply
to private entities, it can be argued that this bill requires
---------------------------
<1> AB 109 (Budget Committee), Ch. 15, Stats. 2011.
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that defendants - including pretrial detainees, convicted
defendants on probation or work release, sentenced misdemeanants
and others - could only be placed in private electronic
monitoring programs. At the least, the provision appears to be
ambiguous or unclear on this point, inviting litigation.
If the intent of the author is to require that any county
administered electronic monitoring program operated through a
contract with a private entity comply with the standards in
Section 1203.016, subdivision (j), the following amendment is
suggested:
(a) Any county-administered electronic monitoring program that
is operated by a private vendor pursuant to a contract between
the county correctional administrator and the vendor shall
comply with the provisions of subdivision (j)(3) of Section
1203.016.
4. The Bill does not Appear to Require Judges to Place Defendants
in Electronic Monitoring Programs Operated through a Contract
with the County Correctional Administrator (Pen. Code �
1203.016)
According to the sponsor, the intent of the bill is to prohibit
a judge from placing a defendant under any form of electronic
monitoring that is not operated through a contract between the
county correctional administrator and the entity that operates
the monitoring program. Such programs may not have adequate
equipment and may not adequately monitor defendants so as to
protect the public.
However, as drafted, the bill would likely be interpreted as
only prohibiting a judge from placing a defendant in a county
administered program that does not comply with the terms of
subdivision (j) of Section 1203.016. Some judges could conclude
that the bill does not limit the court's authority to place
defendants under electronic monitoring by a private company that
is not subject to a contract with the county correctional
administrator, as such a program would not be a "county
administered program."
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Further, Penal Code Sections 1203.016 through 1203.018 are
drafted in terms of the authority of the board of supervisors
and the county correctional administrator to create programs for
electronic monitoring release of specified classes of inmates
without court approval. These sections do not refer to the
inherent power of a court set any reasonable conditions for
pretrial release and perhaps release in other circumstances.
If the intent of the author is to prohibit a court from placing
a defendant in any electronic monitoring program that is not
operated in compliance with subdivision (j) of Section 1203.016,
the following amendment is suggested:
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A court may place a person into an electronic monitoring program
that is operated by a private vendor only if the program is
operated pursuant to a contract and standards that comply with
the provisions of subdivision (j) of Section 1203.016.
5. Concerns that this Bill Limits the Ability of Courts to
Appropriately Place Defendants in Electronic Monitoring
Programs
Growing Need for Electronic Monitoring in Light of Realignment
Under criminal justice realignment, inmates who would have been
committed to prison under prior law are being held in county
jails. The use of jail cells to house sentenced felons,
sentenced misdemeanants, probationers serving a jail term and
pretrial detainees has created a need for alternatives to jail
incarceration, including home detention with electronic
monitoring. The use of electronic monitoring of defendants
placed on home detention will continue to grow. Without use of
electronic monitoring, dispositions in realignment cases could
be very difficult to manage. Difficulty in managing realignment
sentencing would in turn lead to problems in misdemeanor
sentencing.
Sponsor's Argument that some Courts have Appointed Incompetent
Firms to Electronically Monitor Defendants
The sponsor - Sentinel Offender Services - has essentially
argued that some judges have placed defendants on electronically
monitoring through businesses that are incompetent or who do not
have adequate equipment or monitoring capabilities. However,
the sponsor did not provide any specific examples of such cases.
Further, the sponsor did not provide examples of cases where
public safety was compromised because a defendant was monitored
by an entity that did not operate pursuant to a contract that
complied with the terms of Penal Code Section 1203.016,
subdivision (j). Because the need for electronic monitoring
will continue to grow, and because it is not apparent that there
are any significant problems under existing practices, perhaps
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this bill is premature.
Concerns about Limiting Electronic Monitoring to Specified Forms
of Contracts
Interested parties, including LCA (Leaders in Community
Alternatives) in San Francisco, have expressed concerns that
this bill will unreasonably limit the ability of courts to
appropriately place inmates under electronic monitoring. For
example, LCA has argued that some counties do not have contracts
for electronic monitoring of misdemeanants, despite the
authority to do so in Section 1203.017 of the Penal Code. As
such, a judge who has decided to impose a significant penalty on
a misdemeanor defendant, which could include home detention on
electronic monitoring, must sentence the person to jail. If the
jail sentence is served that would limit the ability of the
sheriff to house persons convicted of felonies or pretrial
detainees. If the defendant is released from jail without
serving more than a small portion of the sentence, the court's
orders are frustrated and the defendant avoids punishment.
Similar concerns would arise in cases where a judge wants to
place a pretrial detainee on electronic monitoring, rather than
leaving the person in jail, but the county does not have an
electronic monitoring program for pretrial detainees under Penal
Code Section 1203.018.
Issue of whether or not Minimum Standards - apart from the
Contract Terms and Standards in Penal Code Section 1203.106,
subdivision (j) - should be set for Electronically Monitoring
Programs
LCA argues that courts should be allowed to place defendants in
electronic monitoring programs that meet minimum standards of
operation, regardless of whether or not the county administers
an electronic monitoring program for a particular class of
inmates. While existing sections concerning electronic
monitoring refer to the authority of the correctional
administrator - generally the sheriff - to place specified
classes of inmates on electronic monitoring without the
concurrence or approval of the court, the law could describe the
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kinds of inmates who could be placed on electronic monitoring by
the court. The argument of LCA raises the issue of whether or
not electronic monitoring programs that do not operate pursuant
to a contract described in Penal Code section 1203.016,
subdivision (j), can provide competent services that ensure
public safety and the defendant's compliance with the terms of
release.
SHOULD THE LEGISLATURE SET MINIMUM STANDARDS FOR ELECTRONIC
MONITORING OF DEFENDANTS WHO ARE NOT PLACED IN PROGRAMS SUBJECT
TO CONTRACTS DESCRIBED IN PENAL CODE SECTIONS 1203.016 THROUGH
1203.018?
ARE THERE DOCUMENTED CASES OF SIGNIFICANT PROBLEMS WITH
ELECTRONIC MONITORING OF DEFENDANTS BY BUSINESSES THAT DO NOT
HAVE CONTRACTS WITH A COUNTY CORRECTIONAL ADMINISTRATOR THAT
COMPLIES WITH THE TERMS OF PENAL CODE SECTION 1203.016?
IS IT PREMATURE TO REQUIRE ANY PRIVATE ELECTRONIC MONITORING
COMPANY TO OPERATE PURSUANT TO A CONTRACT THAT COMPLIES WITH
PENAL CODE SECTION 1203.016?
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